Newcomb Gate still standing two months after court ordered its removal

Updated February 3, 2014 at 6:25 PM;Posted February 3, 2014 at 5:02 PM

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MICHAEL DeMOCKER / THE TIMES-PICAYUNE
Robert Frost said "Good fences make good neighbors" but not everyone agrees, especially when it comes to the fence installed in 2006 that blocks vehicular traffic from going down Newcomb Blvd. from Freret Street on Saturday, November 26, 2011.
(Michael DeMocker, The Times-Picayune)

Two months after a state court ordered the city of New Orleans to remove a gate erected in 2006 blocking the public from accessing one end of Newcomb Boulevard in an affluent section of Uptown, the wrought iron fence remains standing with no signs that it is going anywhere.

Keith Hardie, a nearby resident fighting to have the gate removed, said after three rulings from two courts ordering its removal it is time for the city to stop the delays, follow the law and tear down the fence.

Hardie, who sued the city in 2007 with several other residents demanding removal of the gate, said they would file a motion Tuesday notifying the Fourth Circuit Court of Appeal that the city is not complying with its Dec. 30 order.

Tom Milliner, Hardie's attorney, said he is "surprised" by the city's inaction.

Immediately following the court's ruling, Milliner said assistant city attorney Adam Swensek sent him an email stating that he had "instructed the Department of Public Works to commence removal of the (gate) without further delay."

City Attorney Sharonda Williams struck a slightly different tone Monday.

"The city is working with the Court and the parties to move forward with the removal of the fence and to ensure the intersection and adjacent streets remain safe for drivers," she said.

Christian Rooney, president of the Newcomb Boulevard Association, said the neighborhood group filed an application with the city in July to purchase the street in order to keep the fence standing. The city hasn't placed a price on Newcomb, but Audubon Place, a privately owned street nearby of similar length, is valued at $500,000, according to the Orleans Parish Assessor's Office.

The "unusually narrow width (of Newcomb) and 4-block length without an intersection allows motorists to use the street as a 'speedway cut through' endangering children and pedestrians. The fence has been up for over seven years and the danger has been eliminated," Rooney said. "We hope to persuade the city that safety should be more important than complaints by a few neighbors that they are inconvenienced by not being able to cut through the street."

The sale of a public street as busy as Newcomb Boulevard would be "unprecedented," Hardie stated in a 2013 letter to the city. "If this street could be sold, why not other streets? Wealthy citizens would barricade themselves in privileged gated communities, forcing a form of economic segregation. New Orleans would go from being a city known for its urbanist charm, open grid, and lively pedestrian traffic to just another series of hard-to-navigate suburban cul-de-sacs."

Newcomb Boulevard is a four-block strip that runs between St. Charles Avenue and Freret Street near Tulane and Loyola universities. Before the gate went up, it offered an alternative route for drivers to the often-congested intersection at Broadway Street and St. Charles Avenue, Milliner said.

"A grid pattern is like a valve on a pressure cooker; it allows the excess traffic to go on the side streets to reduce congestion," Milliner said. "That's why there's such horrible traffic on the North Shore. They have all of these cul-de-sacs so you can't drive through. All the traffic is forced on the main streets. There's nowhere else to go."

The Newcomb Boulevard Association filed an application to purchase the street in July, prompting the city to request a stay on removing the fence. Civil District Judge Michael Bagneris granted it in October, giving the association time to complete the process..

As of Dec. 26, the association had not yet completed the required traffic study to purchase Newcomb.

Newcomb residents have been trying to close the street since 1990, citing excessive traffic that travels at high speeds.

In 2005, the city financed a study by Urban Systems Inc. that concluded that the volume and speed of the traffic on Newcomb Boulevard was "normal and not excessive" and that possible solutions such as the installation of speed bumps could work but only after further studies were conducted.

Despite these findings, former Public Works Director John Shires awarded the residents a permit to construct the gate on Jan. 31, 2006, his last day in office. He didn't put the matter before the City Planning Commission, the City Council, or require the residents of Newcomb purchase the street and pay for future maintenance costs, as city law dictates.

Later that year a wrought iron fence was erected at the Freret Street end of Newcomb, turning the street into a cul-de-sac and "effectively deleting (it) from the street grid," Hardie said.

Since erecting the gate, the Newcomb Boulevard Association has lost a string of court rulings.

Bagneris ruled in March 2012 that the fence was illegal since the city sidestepped City Council and its authority to control public streets and ignored its own study that determined Newcomb Boulevard wasn't plagued by excessive traffic or high-levels of speed.

The "abuse of power is crystal clear" and Shires acted in an "arbitrary and capricious manner," Bagneris wrote.

The Louisiana Supreme Court refused to hear the matter in May, ending the appeals process.

The courts and opponents of the fence point to the 2003 closure of Trianon Plaza in Broadmoor as an example of how a street should be closed. Residents had complained about too much traffic from nearby Dominican High School, and Shires agreed to temporarily close the street to discern whether it had any impact on traffic on surrounding roads.

When the study concluded the impact would be minimal, Shires recommended the street's permanent closure as long as the residents purchased the street and "bear all future roadway and utility maintenance costs."

After hearings before the City Planning Commission and the City Council, the residents of Trianon Plaza purchased the street for $97,000.

When asked why he didn't follow the same procedure involving the closure of Newcomb, Shires, in a 2011 deposition, said repeatedly that he couldn't remember the exact details of what happened five years ago during such a chaotic time.

"I mean I was much more worried about other things than losing streets," Shires said of the months immediately following Hurricane Katrina. "I was just trying to keep city business going as normal as possible and then dealing with the destruction of a city which was a little bit more important at the time."

Shires also said he didn't remember receiving a Jan. 10, 2006 fax from then-City Councilman Jay Batt requesting the closure of Newcomb Boulevard, although Shires agreed to do so three weeks later.

When asked who would benefit from the closure of Newcomb besides the people who lived on the street, Shires said in the deposition: "I think it keeps people on the main arterials where they belong and not cutting through neighborhoods."

Shires denied in the deposition that he or his wife knew anyone on Newcomb Boulevard.

Batt said in January that the appellate court's December order to demolish the gate is unfortunate for the people on Newcomb, but that he didn't remember anything about the issue. He did however, remember Hardie, who worked to defeat Batt during his reelection campaign.